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Katz & Stefani

Publications

Alimony & Taxes: After 2018, maintenance payments won’t be tax deductible

Published in Chicago Lawyer Magazine, October 2018
By Daniel Stefani

One aspect of President Donald Trump’s changes to the federal tax code affects alimony (also known as maintenance in Illinois). Specifically, payment of maintenance pursuant to a dissolution of marriage judgment entered after Dec. 31 will no longer be tax deductible by the payor and tax includable to the payee. This represents a major change in federal tax law which will affect all state law which governs dissolutions of marriage and more specifically the payment of maintenance. Maintenance is spousal support which is different than child support. Child support was never tax deductible by the payor.
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Tapping Damages: Damages for Pain and Suffering Can be Tapped for Child Support

Published in Chicago Lawyer Magazine, August 2018
By Daniel Stefani

The Fourth District Appellate Court rendered a recent Opinion of In Re Marriage of Plowman v. Lawson (2018 IL App.4th 170665).  In Plowman, the trial court set a child support order using a small portion of a personal-injury settlement as income available for child support.  The portion of the settlement was only the amount attributable to lost earnings. The appellate court reversed and on remand directed the trial court to consider the entirety of the net proceeds from the payee’s personal-injury settlement as income for child support purposes.  This opinion furthers the inconsistency between the appellate court districts in Illinois as to the portion of any lawsuit settlement that can be considered income for child support purposes.
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What is Cohabitation?

Published in Chicago Lawyer Magazine, June 2018
by Daniel R. Stefani

If a spouse receiving maintenance cohabits with another person on a resident, continuing conjugal basis in accordance with Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act, maintenance terminates retroactive to the date the Court finds that the payee spouse or ex-spouse has cohabited. As a result, the payee spouse then must refund any maintenance paid after the date the Court finds cohabitation. A payor spouse who seeks termination of their maintenance obligation has the burden of establishing that the payee spouse is cohabiting on a resident, continuing conjugal basis. It is the payor spouse’s burden to make a “substantial showing that the former spouse is involved in a de facto husband and wife relationship with a third party”.
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What’s in a Name?

Published in Chicago Lawyer Magazine, April 2018
by Daniel R. Stefani

It is very rare in a pending divorce where the litigants have a dispute over the children’s surname, so when I came across the case of In Re Marriage of Piegari, 2016 Ill.App.2d 160594, it was worth a look. In 2016, during the pendency of their divorce proceedings, Karen Piegari filed a petition seeking a Court order to change the children’s surnames pursuant to Section 21-101 of the Illinois Code of Civil Procedure. Earlier in the proceedings, the Court entered an agreed parenting plan which allocated to Karen a majority of the parenting time but granted both parties equal decision making responsibilities for the children. At the time of filing, the parties’ dissolution case was still pending in the Trial Court.
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Disgorgement of Divorce Attorney Fees

Published in Chicago Lawyer Magazine, February 2018
by Daniel R. Stefani

On November 30, 2017, the Illinois Supreme Court issued the opinion of In re the Marriage of Christine Goesel and Andrew Goesel, 2017 IL 122046. The Court held that attorney fees earned by a party’s lawyer in the normal course of representation for past services rendered are not “available funds” to be disgorged and paid to the opposing parties’ attorney within the meaning of Section 501(c-1)(3) of the Illinois Marriage and Dissolution of Marriage Act (“the Act”).
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When is a Post-Dissolution Order Appealable?

Published in Chicago Lawyer Magazine, November 2017
by Daniel R. Stefani

Following a Judgment of Dissolution of Marriage, often years later, cases end up back in court on post-dissolution motions and/or petitions. Typically there are requests to modify child support, maintenance, parental decision making and/or parenting time. Many times the trial court adjudicates some but not all of the pending motions or petitions. In such circumstances there is always a question as to whether the resulting order is final and appealable and whether the appellate court has jurisdiction over certain appeals and pursuant to what Supreme Court Rule. For many years there has been a split between the Appellate Court Districts as to when a post-dissolution order is final and appealable. In 2009 the Illinois Supreme Court in Gutman was presented with the issue and following the decision, the Appellate Districts continued to struggle with different interpretations.
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Does Permanent Mean Forever?

Published in Chicago Lawyer Magazine, September 2017
by Daniel R. Stefani

Hot off the press is In re the Former Marriage of Bernay, 2017 IL App (2d) 160583. The Second District Opinion is a must read for any payor or potential payor of permanent maintenance. In some ways, this Opinion redefines the longstanding definition of permanent maintenance as is understood in most divorce Courts in Illinois. After a 14 year marriage, Wife petitioned to dissolve the marriage. At the time, the children were still minors. At the time of the parties’ dissolution, Wife had graduated with an Associate’s Degree and was employed as a nurse. Husband earned an average of approximately $125,000 per year. The Judgment for Dissolution of Marriage provided that ex-Husband would pay ex-Wife $4,150 per month in unallocated maintenance and child support, reviewable after 36 months. In 1999, at the review hearing, ex-Wife earned $28,000, and ex-Husband earned approximately $383,000. At the review hearing, the Court increased ex-Wife’s unallocated maintenance and child support to $6,000 per month, reviewable after 60 months.
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What is a minor modification of parenting time not requiring a showing of substantial change in circumstances?

Published in Chicago Lawyer Magazine, July 2017
by Daniel R. Stefani

In the recent 4th District Opinion of In Re Marriage of Theresa O’Hare and Ronald Stradt, the Court gave us some insight as to the definition of “minor modification” in Section 610.5(e)(ii) of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) which became effective January 1, 2016.
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Mediation in Divorce

Published in Chicago Lawyer Magazine, May 2017
by Daniel R. Stefani

For as long as I can remember, when it comes to custody issues in a divorce case, Cook County Local Rules have always required parties to mediate these issues. For almost 3 years now, Cook County Local Rules allow Courts to order litigants to mediation on financial issues. So far, it has been an effective way to resolve tough financial issues that would otherwise have gone to trial.
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Can I use my spouse’s emails in divorce litigation?

Published in Chicago Lawyer Magazine, March 2017
by Daniel R. Stefani

We hear it all the time in clients’ initial consultations.  Can I look at my spouse’s emails on our home computer?  The first question I have is how would you acquire such emails?  We then discuss whether that acquisition and/or use of emails could violate some State or Federal law regarding eavesdropping, wiretapping, etc.  The law is still somewhat unclear in Illinois.  However, the Seventh U.S. Circuit Court of Appeals decided a case on the subject on December 14, 2016.  In Case No. 15-2076, Barry Epstein, Plaintiff-Appellant, v. Paula Epstein and Jay Frank, Defendants-Appellees.  The Seventh Circuit held that putting an auto-forward on your spouse’s email account when you suspect he is cheating on you could violate the Federal Wiretapping and Electronic Surveillance Act.
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